IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO. 11139 OF 2010 (MV) C/W M.F.A.NO. 11136 OF 2010 (MV) In M.F.A.No.11139 of 2010:
BETWEEN:
Rakesh Francis D’souza S/o William D’souza, Aged 26 years, R/at D.No.2-7B9/1, Ave Maria house, Thiruvail Grama, Vamanjoor post, Mangalore. ... Appellant (By Sri. P.Karunakar, Advocate) AND:
1. Shanthi miskia, Aged about 26 years, R/a D.No.3-276, Moodushedde, Shale padavu, Mangalore.
2. The New India Insurance Co. Ltd., Branch 3Essel chambers, 3rd floor, Karngalpady, Mangalore.
3. Krishna Prasad S/o Rajesh Karkera, Kanchana house, Vadevarabettu, Mulky. ... Respondents (By Sri. Ravi.S. Samprathi, Advocate for R2; R1 is served;
Notice to R3 is d/w v/o dated 22.09.2015) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 03.12.2009 passed in MVC No.399/2007 on the file of Member, MACT-II & I Additional District Judge, Dakshina Kannada, Mangalore, dismissing the claim petition for compensation.
In M.F.A.No.11136 of 2010:
BETWEEN:
Aston Shawn Cardoza Minor aged 5 and half years, Reprt. By next friend mother, Shanthi Cardoze, Aged 30 years, R/at Ever Shine garden, Thiruvail grama, Vamanjoor, Mangalore. ... Appellant (By Sri. P.Karunakar, Advocate) AND:
1. Shanthi miskia, Aged about 26 years, R/a D.No.3-276, Moodushedde, Shale padavu, Mangalore.
2. The New India Insurance Co. Ltd., Branch 3Essel chambers, 3rd floor, Karngalpady, Mangalore.
3. Krishna Prasad S/o Rajesh Karkera, Kanchana house, Vadevarabettu, Mulky. ... Respondents (By Sri. Ravi.S. Samprathi, Advocate for R2; R1 is served;
R3 – appeal dismissed v/o dated 15.06.2017) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 03.12.2009 passed in MVC No.396/2007 on the file of Member, MACT-II & I Additional District Judge, Dakshina Kannada, Mangalore, dismissing the claim petition for compensation.
These MFAs coming on for Admission, this day, the court delivered the following:
JUDGMENT The claimants in M.V.C.Nos.396/2007 and 399/2007 on the file of the MACT, Dakshina Kannada, Mangalore are before this Court in these two appeals, being aggrieved by the common judgment and award dated 03.12.2009. The claimants in both the appeals filed claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for having sustained injuries in a road traffic accident occurred on 17.01.2011 involving an auto rickshaw bearing Registration No.KA-19-B-8044. It is stated that when the claimants were travelling as passengers, the driver of the auto rickshaw drove in a rash and negligent manner, as a result, the auto capsized and the claimants sustained injuries. Thereafter, they were shifted to Colaco Hospital in Mangalore for treatment and they were admitted as inpatients.
2. On issuance of notice, the Insurance Company filed objection denying the entire claim averments. He further submitted that the auto rickshaw was not at all involved in the accident. The auto rickshaw was falsely implicated in the accident. It is also contended that the auto rickshaw was not insured as on the date of accident.
3. Based on the pleadings, the Tribunal framed issues in both the claim petitions that as to whether the claimants prove that they had sustained injuries in motor vehicle accident which occurred on 17.01.2007 while they were proceeding in auto rickshaw bearing Registration No. KA-19-B-8044, due to the rash and negligent driving of the driver of the auto rickshaw bearing Registration No.KA-19-B-8044. The Tribunal based on the material on record answered the issues in the negative and dismissed the claim petitions. Hence, the claimants/appellants are before this Court in these two appeals.
4. Heard the learned counsel for the appellants and the learned counsel for respondent No.2 – Insurance Company.
5. On hearing both the learned counsel and on going through the impugned judgment and award including the lower court records, I am of the view that the Tribunal is justified in dismissing the claim petitions. The alleged accident had taken place on 17.01.2007, whereas the complaint was lodged on 19.01.2007 by one Rakesh Francis D’souza, the claimant in MVC No.399/2007 against the driver of the auto rickshaw by name Aravin. It is the case of the claimants that when they were travelling in the auto rickshaw, the auto rickshaw capsized and had turned turtle. Strangely, the driver of the auto rickshaw has not sustained any injuries. The driver of the auto rickshaw is the father of the claimant in M.V.C.No.396/2007. The hospital records would indicate that on 17.01.2007, they were admitted to the hospital noting that they had suffered fall injuries and it is not an accidental injuries. As noted at Ex.P14 - discharge summary of Colaco Hospital, Mangalore, indicates that the claimant in M.V.C.No.399/2007 was admitted with the history of accidental fall. The discharge summary would not indicate that the claimants suffered injuries due to accident while they were travelling in auto rickshaw. The accident had taken place on 17.01.2007, but the Ex.P10 - wound certificate indicates that Rakesh-claimant was admitted to the hospital on 18.01.2007. The claimants would rely upon the charge sheet to contend that, they have proved the accident, but when all other records are against the claimants and contrary to each other, only charge sheet cannot be relied upon to prove that the injuries suffered by the claimants are from accidental injuries while they were travelling in the auto rickshaw. The Tribunal has passed a detailed judgment relying upon the decisions of this Court. The Tribunal in the facts and circumstances of the present case is justified in rejecting the claim petitions. No ground is made to interfere with the judgment and award.
Accordingly, these appeals are dismissed.
Sd/- JUDGE SJK